Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of North County Broadcasting Corporation Licensee of Station
   KFSD(AM) Escondido, California ) ) ) ) ) ) ) ) File No.: EB-10-SD-0028
   NAL/Acct. No.: 201132940002 FRN: 0003770757 Facility ID No.: 49205




                                FORFEITURE ORDER

   Adopted: February 14, 2013 Released: February 15, 2013

   By the Regional Director, Western Region, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
       of four thousand, eight hundred dollars ($4,800) to North County
       Broadcasting Corporation (NCBC), licensee of Station KFSD(AM) in
       Escondido, California, for willfully and repeatedly violating Section
       11.35  of the Commission's rules (Rules).^ The noted violations
       involve NCBC's failure to ensure the operational readiness of Station
       KFSD(AM)'s Emergency Alert System (EAS) equipment.

   II. BACKGROUND

    2. On March 18, 2010, agents from the Enforcement Bureau's San Diego
       Office (San Diego Office) conducted an inspection of Station
       KFSD(AM)'s main studio, located at 1835 Aston Avenue, Carlsbad,
       California, and determined that Station KFSD(AM)'s EAS equipment was
       not operating properly. Specifically, the EAS equipment was capable of
       transmitting a required weekly test (RWT) for NCBC's co-located
       Station KCEO(AM), but it was not capable of transmitting a RWT for
       Station KFSD(AM).^ During the inspection, an NCBC staff person
       acknowledged that Station KFSD(AM)'s EAS equipment connection had been
       experiencing problems sending RWTs and the required monthly tests
       (RMTs) since early December 2009. A review of the EAS logs for Station
       KFSD(AM) corroborated this information.

    3. On March 31, 2010, the San Diego Office sent a letter of inquiry (LOI)
       to NCBC concerning the operational status of Station KFSD(AM)'s EAS
       equipment.^ In its response, NCBC acknowledged that Station KFSD(AM)'s
       EAS equipment, specifically the audio link, did not function properly
       from December 2009 until April 8, 2010.^ According to NCBC, the
       operator on duty contacted Station KFSD(AM)'s chief engineer in
       December about the failure of the audio link. The chief engineer
       initially believed that the station's EAS equipment problems were
       intermittent, but when notified again in late February of additional
       EAS failures, he performed a complete inspection of the equipment and
       exchanged controlling links between pieces of the equipment. The next
       week, in early March, the chief engineer inspected the wiring between
       the pieces of equipment and the audio paths, and tested recently
       purchased pieces of equipment in an attempt to resolve the continuing
       EAS failures. NCBC also stated that after the San Diego Office's
       inspection on March 18, 2010, the engineer submitted the equipment for
       repair and learned that a power supply filter capacitor had "finally
       dried up" and had gone from causing intermittent failure to total
       failure of the audio link. NCBC also stated that the equipment was
       repaired as of April 8, 2010.

    4. On January 11, 2011, the San Diego Office issued a Notice of Apparent
       Liability for Forfeiture (NAL) against NCBC for failure to ensure the
       operational readiness of Station KFSD(AM)'s EAS equipment.^ Although
       the base forfeiture for EAS equipment that is not properly installed
       or operational is $8,000, the San Diego Office proposed a $6,000
       forfeiture in light of NCBC's repeated good-faith attempts to identify
       and repair the problems.^ In particular, the San Diego Office took
       into account the efforts of the Station KFSD(AM)'s engineer, prior to
       the San Diego Office's inspection, to repeatedly trouble-shoot and
       test the EAS unit, which he believed was experiencing intermittent
       failures, because co-located Station KCEO(AM) successfully used the
       same unit without any failures.

    5. NCBC responded to the NAL on February 4, 2011.^ In its Response, NCBC
       argues that the NAL is unenforceable because the Commission has "never
       complied with its obligation under the Small Business Regulatory
       Enforcement and Fairness Act of 1996 . . . ."^ NCBC also argues that
       the proposed forfeiture should be reduced because of NCBC's history of
       compliance with the Rules, and because NCBC took reasonable steps to
       resolve the EAS equipment failure when the problems with the EAS
       equipment were observed.^

   III. DISCUSSION

    6. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Communications Act of 1934, as amended
       (Act),^ Section 1.80 of the Rules,^ and the Commission's Forfeiture
       Policy Statement.^ In examining NCBC's response, Section 503(b) of the
       Act requires that the Commission take into account the nature,
       circumstances, extent, and gravity of the violation and, with respect
       to the violator, the degree of culpability, any history of prior
       offenses, ability to pay, and other such matters as justice may
       require.^ We considered NCBC's response to the NAL in light of these
       statutory factors and find that reduction of the forfeiture is
       warranted for the reasons discussed below.

    7. Every broadcast station is part of the nationwide EAS network.^ The
       EAS enables the President and state and local governments to provide
       immediate and emergency communications and information to the general
       public.^ State and local area plans identify local primary sources
       responsible for coordinating carriage of common emergency messages
       from sources such as the National Weather Service or local emergency
       management officials.^ Required monthly and weekly tests originate
       from EAS Local or State Primary sources and must be retransmitted by
       the participating station.

    8. As the nation's emergency warning system, the Emergency Alert System
       is critical to public safety, and we recognize the vital role that
       broadcasters play in ensuring its success. The Commission takes
       seriously any violations of the Rules implementing the EAS and expects
       full compliance from its licensees. Section 11.35 of the Rules
       requires all broadcast stations to ensure that EAS encoders, EAS
       decoders, and attention signal generating and receiving equipment are
       installed and operational so that the monitoring and transmitting
       functions are available during the times the station is in operation.^
       Broadcast stations must also determine the cause of any failure to
       receive required monthly and weekly EAS tests, and must indicate in
       the station's log why any required tests were not received, and when
       defective equipment is removed and restored to service.^ An EAS
       Participant may operate without the defective equipment pending its
       repair or replacement for 60 days without further FCC authority.^ If
       the repair or replacement of defective equipment is not completed
       within 60 days, an EAS Participant shall submit an informal request to
       the District Director of the local FCC field office for additional
       time to repair the defective equipment. ^ ^

    9. NCBC does not dispute the facts described in the NAL. According to the
       investigation, Station KFSD(AM)'s EAS equipment began to malfunction
       in December 2009. At that point, although NCBC did not have an
       obligation to report the problem to the Commission, it still had to
       fix the equipment. Station KFSD(AM)'s chief engineer concluded that
       the problem was intermittent because co-located Station KCEO(AM) was
       using the same equipment without incident. The problems continued,
       however, through late February and into early March 2010, exceeding
       the 60 day period allotted for repair or replacement of EAS equipment
       without requesting additional time from the local FCC field office.
       The Station KFSD(AM) chief engineer performed a complete inspection
       and attempted to identify the source of the problem but, despite these
       efforts, the audio link failures persisted. When the San Diego Office
       conducted its inspection on March 18, 2010, the FCC agents confirmed
       that Station KFSD(AM)'s EAS equipment was malfunctioning. At that
       point, Station KFSD(AM)'s chief engineer submitted the equipment for
       repair and learned that a power supply filter capacitor had gone from
       causing intermittent failure to total failure of the audio link.
       Station KFSD(AM) resumed operating with fully functioning EAS
       equipment on April 8, 2010.^

   10. NCBC contends that the NAL cannot be enforced because NCBC is a "small
       entity" and the Commission has never complied with its obligation
       under the Small Business Regulatory Enforcement and Fairness Act of
       1996 (SBREFA)^ "to adopt a specific policy or program concerning the
       reduction or waiver of forfeiture for small entities."^ We find no
       merit in NCBC's contention. The Commission has previously held that
       its policies, as detailed in the Forfeiture Policy Statement, comply
       with the SBREFA.^ In particular, the Commission found that, consistent
       with the SBREFA, its precedent requires consideration of a small
       entity's ability to pay along with any good faith efforts by the
       entity to comply with the law.^

   11. In the instant case, we have no evidence of NCBC's inability to pay.^
       Additionally, the San Diego Office already reduced the proposed
       forfeiture amount after taking into account that "NCBC initiated good
       faith efforts, albeit unsuccessfully, to troubleshoot the EAS
       equipment failure prior to the Bureau's inspection."^

   12. NCBC also requests a reduction of the forfeiture because of its
       history of compliance with the Rules.^ We have examined the record and
       agree. Accordingly, we reduce the total forfeiture from $6,000 to
       $4,800 based on NCBC's history of compliance with the Rules.

   13. We have examined NCBC's Response to the NAL pursuant to the statutory
       factors above, and in conjunction with the Forfeiture Policy
       Statement. As a result of our review, we conclude that NCBC willfully
       and repeatedly violated Section 11.35 of the Rules. Considering the
       entire record and the factors listed above, we find that a forfeiture
       in the amount of $4,800 is warranted.

   IV. ORDERING CLAUSES

   14. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.204,
       0.311, 0.314, and 1.80(f)(4) of the Commission's Rules, North County
       Broadcasting Corporation IS LIABLE FOR A MONETARY FORFEITURE in the
       amount of four thousand, eight hundred dollars ($4,800) for willfully
       and repeatedly violating Section 11.35 of the Commission's Rules.^

   15. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days after the
       release date of this Forfeiture Order.^  If the forfeiture is not paid
       within the period specified, the case may be referred to the U.S.
       Department of Justice for enforcement of the forfeiture pursuant to
       Section 504(a) of the Act.^  North County Broadcasting Corporation
       shall send electronic notification of payment to WR-Response@fcc.gov
       on the date said payment is made.

   16. The payment must be made by check or similar instrument, wire
       transfer, or credit card, and must include the NAL/Account number and
       FRN referenced above. Regardless of the form of payment, a completed
       FCC Form 159 (Remittance Advice) must be submitted.^ When completing
       the FCC Form 159, enter the Account Number in block number 23A (call
       sign/other ID) and enter the letters "FORF" in block number 24A
       (payment type code).   Below are additional instructions you should
       follow based on the form of payment you select:

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated.

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101.

   17. Any request for full payment under an installment plan should be sent
       to:  Chief Financial Officer--Financial Operations, Federal
       Communications Commission, 445 12th Street, S.W., Room 1-A625,
       Washington, D.C.  20554.^  If you have questions regarding payment
       procedures, please contact the Financial Operations Group Help Desk by
       phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.

   18. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
       sent by both First Class Mail and Certified Mail Return Receipt
       Requested to North County Broadcasting Corporation at 1563 South State
       College Boulevard, Anaheim, CA 92806, and to David Tillotson, its
       counsel of record, at 4606 Charleston Terrace, NW, Washington, D.C.
       20007-1911.

   FEDERAL COMMUNICATIONS COMMISSION

   Rebecca L. Dorch

   Regional Director, Western Region

   Enforcement Bureau

   ^ 47 C.F.R. S 11.35.

   ^ Station KCEO(AM) and Station KFSD(AM) shared a common EAS unit and
   common monitoring receivers. The internal audio switching in the EAS unit
   was used for Station KCEO(AM), while a separate remote audio switch was
   used for Station KFSD(AM).

   ^ See Letter of Inquiry from William R. Zears, Jr., District Director, San
   Diego Office, Western Region, Enforcement Bureau, to North County
   Broadcasting Corporation (March 31, 2010) (on file in EB-11-SD-0028).

   ^ See Letter from Susan E. Burke, Secretary, North County Broadcast
   Corporation, to William R. Zears, Jr., District Director, San Diego
   Office, Western Region, Enforcement Bureau, (filed April 19, 2010, in
   EB-11-SD-0028) (LOI Response). LOI Response at 2.

   ^ North County Broadcasting Corporation, Notice of Apparent Liability for
   Forfeiture, 26 FCC Rcd 201 (Enf. Bur. 2011) (NAL).

   ^ See Note to Section 1.80(b)(4) of the Rules, 47 C.F.R. S 1.80(b)(4)
   (listing "Good faith or voluntary disclosure" as a basis for adjusting
   forfeitures downward); Radio One Licenses, Inc., Memorandum Opinion and
   Order, 18 FCC Rcd 15964, 15965 (2003), recons. denied, Memorandum Opinion
   and Order, 18 FCC Rcd 25481 (2003) (reducing $5,200 forfeiture assessed
   for Emergency Alert System rule violations to $4,000 due to the licensee's
   corrective measures prior to an investigation).

   ^ See Response of North County Broadcasting (filed Feb. 4, 2011, in
   EB-10-SD-0028) (Response).

   ^ Response at 1.

   ^ Response at 2.

   ^ 47 U.S.C. S 503(b).

   ^ 47 C.F.R. S 1.80.

   ^ The Commission's Forfeiture Policy Statement and Amendment of Section
   1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
   Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
   (Forfeiture Policy Statement).

   ^ 47 U.S.C. S 503(b)(2)(E).

   ^ 47 C.F.R. SS 11.11, 11.41.

   ^ 47 C.F.R. SS 11.1, 11.21.

   ^ 47 C.F.R. S 11.18. State EAS plans contain guidelines that must be
   followed by broadcast and cable personnel, emergency officials and
   National Weather Service personnel to activate the EAS for state and local
   emergency alerts. The state plans include the EAS header codes and
   messages to be transmitted by the primary state, local, and relay EAS
   sources. 47 C.F.R. S 11.21.

   ^ 47 C.F.R. S 11.35.

   ^ 47 C.F.R. S 11.35(a)-(b).

   ^ See 47 C.F.R. S 11.35(b).

   ^ See 47 C.F.R. S 11.35(c). No such request was submitted by NCBC to the
   San Diego Office.

   ^ LOI Response at 2.

   ^ P.L. 104-121, March 29, 1996, as amended by P.L. May 25, 2007.

   ^ Response at 2-3.

   ^ Forfeiture Policy Statement, 12 FCC Rcd at 17109.

   ^ Id.

   ^ NCBC states in the Response that "NCBC's tax returns which were sent
   directly to the Field Office on May 17, 2010, along with a letter asking
   that the forfeiture proposed in the NAL be canceled based on NCBC's
   inability to pay [sic] establish that NCBC is a small entity." Response at
   2 n.1. We are unable to consider this claim because our records indicate
   that no such letter or tax returns were ever received by the San Diego
   Office, no such information was contained in the LOI Response, and the NAL
   was issued on January 11, 2011.

   ^ NAL, 26 FCC Rcd at 203. For this reason, we also reject NCBC's
   contention that the proposed forfeiture amount should be further reduced
   because the Station KFSD(AM) Chief Engineer made efforts to repair the
   equipment and that "the problem was a technical one that the Station's
   Chief Engineer was unable to identify and therefore, unable to correct."
   Response at 3-4.

   ^ Response at 3.

   ^ 47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
   11.35.

   ^ 47 C.F.R. S 1.80.

   ^ 47 U.S.C. S 504(a).

   ^ An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

   ^ See 47 C.F.R. S 1.1914.

   Federal Communications Commission DA 13-212

   1

   6

   Federal Communications Commission DA 13-212